Employment tribunal and court judgments | February 2022

Fair dismissal of care home worker refusing COVID-19 vaccination

The case of Allette v Scarsdale Grange Nursing Home Ltd concerned a care assistant in a nursing home who refused to be vaccinated against COVID-19. She was dismissed and brought an unfair and wrongful dismissal claim against her employer. The employee claimed she was sceptical of the vaccine and belatedly also tried to argue her religious beliefs against it at a disciplinary hearing. The employer concluded the refusal was due to scepticism and not religious beliefs. The tribunal agreed with the employer, although acknowledged that the employee's fear and scepticism were genuine. It was decided that the vaccine requirement was a reasonable management instruction and there was no medical or clinical basis for her refusing it.

What is interesting about this case is that, at the time, vaccination was not mandatory for care home workers. However, the employer decided to make it a condition of employment (the care home had suffered outbreaks of the virus and a number of deaths). When the employee refused, a disciplinary was held and the employer explained that their insurers would not provide public liability insurance for COVID-related risks after March 2021. Consequently, the employer faced an additional risk of liability if unvaccinated staff were found to pass the disease to other staff, residents, or visitors on top of the moral obligation to its vulnerable residents.

The tribunal rejected both claims and first considered if the dismissal breached the right to respect for private life under Article 8 of the European Convention of Human Rights. It found the employer was reasonable in finding that the employee was just sceptical and had no reasonable excuse for refusing management instructions. The unvaccinated employee posed a threat to others' Article 8 rights by not being vaccinated. It also found that the employer had a legitimate aim of protecting the health of staff, residents, and visitors as a primary aim and then there was a secondary aim in the form of not risking a breach of its insurance policy. As such, the vaccination policy was in keeping with corresponding pressures experienced at the time and even though the employees fear was genuine to her, it was not reasonable, medically, or clinically. The employer also acted reasonably and directed the employee to independent scientific sources of information to address her scepticism. The employee's argument that she had recently recovered from COVID-19 (and therefore had antibodies) was also rejected as evidence/advice at the time indicated that it was possible to contract and transmit more than once. Therefore, the tribunal concluded that the dismissal was in the range of reasonable responses.

We are likely to see more and more pandemic related cases reported as this year goes on.  As with the X v Y case reported in last month's bulletin, for now this is another tribunal decision supporting employers and finding against the claimant's argument that they were unvaccinated due to their beliefs.  

Employment status – self-employed cab driver was not a worker

In Johnson v Transopco UK Ltd, the Employment Appeal Tribunal (EAT) dismissed the appellants appeal against an earlier employment tribunal decision. The appellant was a self-employed black-cab driver and had brought claims against the respondent (who operated the Mytaxi App) but his claims depended on him having worker status.

He was found not to be a worker because the respondent was a client or customer of the appellants taxi business. The tribunal had correctly considered the financial risk, control, dependency, and integration elements of the relationship between the two parties and found that although the appellant worked independently as a black-cab driver he also worked partly through the Mytaxi app, but that they were not Transopco's worker but rather Transopco was a client or customer of his taxi-driving business. No contract is entered into between the passenger and Mytaxi regarding the transportation, the passenger contracts direct with the driver for transportation services. The respondent had little (if any) control on how the appellant undertook the transportation services.

The way in which the work was undertaken was controlled by Transport for London and the appellant (TfL has a set of rules that must be adhered to). Unlike the Uber case, Mytaxi/the respondent did not set the default route, fix fares or impose other conditions (such as choice of vehicle). There was also no exclusion of its drivers from receiving key passenger information. The appellant could also provide his services as and when he wanted and dictate the timing. He was not subject to any control by the respondent in the way in which those services were undertaken, showing a level of independence more consistent with an independent contractor in business on his own account, as opposed to a self-employed person. As such, it was concluded the appellant and respondent were contracted with each other as two independent businesses (the respondent being the customer of the claimant's own taxi business).

This is yet another gig economy employment status case, this time finding against the individual demonstrating that these cases are very fact specific.

Worker who took unpaid leave subsequently claimed for holiday pay

In the recent Supreme Court judgment of the case of Smith v Pimlico Plumbers, an individual (Smith) who had the incorrect status of a self-employed contractor, was able to claim holiday pay for leave taken (unpaid) the previous year, once it was determined he was in fact a worker. This case established new guiding principles for how courts should approach substitution clauses and seek to restrict the ability of such clauses to bypass employment rights. The worker effectively did not take their statutory 4-week entitlement under the Working Time Directive as they were denied paid leave due to their apparent non-worker status, but they nonetheless took unpaid leave. However, their entitlement accumulated over the years and the worker was then able to argue payments owed on termination.

This decision has ramifications on employers as individuals who are denied worker status can now claim compensation for all their four week's leave (whether taken or not) for all the years of employment. There is no limit on the period of carry-over of unpaid 4 week Working Time Directive holiday (known as the "Euro leave" entitlement).  Liability for that leave will appear on termination and could render employers who have inaccurately assigned a non-worker status to individuals open to potentially high financial liabilities.

Find out more with 'Holiday of a lifetime? How the latest Court of Appeal decision affects you' by Charlie Maples.